Citation Nr: 0030459
Decision Date: 11/22/00 Archive Date: 12/01/00
DOCKET NO. 96-12 854 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. The propriety of the initial 70 percent rating assigned
for the veteran's service-connected post-traumatic stress
disorder (PTSD).
2. Entitlement to service connection for alcohol and drug
abuse, claimed as secondary to the veteran's service-
connected PTSD.
3. Entitlement to service connection for chloracne, claimed
as secondary to exposure to Agent Orange.
WITNESSES AT HEARING ON APPEAL
Appellant and his counselor
ATTORNEY FOR THE BOARD
Steven D. Reiss, Counsel
INTRODUCTION
The veteran served on active duty from November 1968 to
August 1971, including combat service in the Republic of
Vietnam, and his decorations include the Purple Heart Medal.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from July 1995 and March 1997 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Buffalo, New York. In the former rating
action, the RO denied, among other issues, the veteran's
claims of entitlement to service connection for PTSD; alcohol
abuse as secondary to PTSD; and chloracne, which was claimed
as secondary to the veteran's alleged in-service exposure to
Agent Orange. In the latter rating action, the RO
established service connection for PTSD, and, following a
period in which it granted entitlement to a temporary 100
percent evaluation pursuant to 38 C.F.R. § 4.29, the RO
assigned an initial 50 percent evaluation, effective June 1,
1994. In the latter rating decision, the RO also confirmed
and continued the denial of service connection for chloracne
and expanded the veteran's secondary service connection claim
to include drug abuse. The veteran has perfected appeals of
both of these determinations to the Board.
Thereafter, in a September 1997 rating action, the RO
increased the initial evaluation of the veteran's PTSD to 70
percent, effective June 1, 1994. Because the increase in the
evaluation of the veteran's PTSD does not represent the
maximum available rating available for this disability, the
veteran's claim for a higher evaluation remains in appellate
status. AB v. Brown, 6 Vet. App. 35 (1993). Further,
because the veteran has disagreed with the initial rating
assigned for his PTSD, the Board has recharacterized this
claim on the title page as involving the propriety of the
initial evaluation. See Fenderson v. West, 12 Vet. App. 119,
126 (1999).
In addition, in the July 1995 rating action, the RO also
denied service connection for a shell fragment wound of the
hip; entitlement to a temporary total evaluation pursuant to
38 C.F.R. § 4.29 for hospitalization from March 28 to May 20,
1994; and to nonservice-connected pension benefits, to
include on an extraschedular basis pursuant to 38 C.F.R.
§ 3.321. The veteran perfected a timely appeal of each of
these claims to the Board. Thereafter, in the March 1997
rating decision, the RO granted service connection for a
shell fragment wound of the right hip and assigned a
noncompensable evaluation, effective March 30, 1994. In this
rating decision, the RO also established entitlement to a
temporary total evaluation for inpatient treatment pursuant
to 38 C.F.R. § 4.29 from March 28 to May 31, 1994, as well as
to nonservice-connected pension benefits. As such, because
the benefits sought on appeal were granted, i.e., service
connection as well as entitlement to a temporary total
evaluation during the requested period and to nonservice-
connected pension benefits, and the veteran has not initiated
an appeal regarding the initial rating of the right hip
disability or the effective date of any of the awards, no
claims with respect to these disabilities are before the
Board. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997);
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).
Further, in October 1997, the veteran asserted a claim of
entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU).
Thereafter, in an April 1998 rating action, the RO granted
the veteran's claim of entitlement to a TDIU, effective
October 7, 1997. In taking this action, the RO essentially
reasoned that the veteran was unemployable due to his PTSD.
In this regard, the Board points out that the RO's action in
establishing entitlement to a TDIU based on impairment due to
the veteran's PTSD does not impact on the Board's
jurisdiction to consider his claim regarding the propriety of
the initial 70 percent evaluation currently assigned for this
disability. The Board notes that the United States Court of
Appeals for Veterans Claims (formerly known as the United
States Court of Veterans Appeals) (Court) has held that
claims for higher ratings, including on an extraschedular
basis, are separate and distinct from a total rating claim.
See Colayang v. West, 12 Vet. App. 524, 537 (1999).
In addition, in July 1996 and August 1997 medical reports, a
VA psychiatrist indicated that the veteran suffered from
recurrent venous leg thromboses that were likely caused by
his service-connected PTSD. The Board interprets this VA
physician's diagnosis as an inferred claim of secondary
service connection for venous leg thromboses. To date, this
issue has not been considered and it is referred to the RO
for appropriate action.
The Board also observes that, in his February 1996
Substantive Appeal (on VA Form 9, Appeal to the Board), the
veteran requested that he be afforded a hearing before a
Member of the Board at the local VA office. Thereafter, in a
signed, March 1996 statement, which was filed at the RO in
May 1996, the veteran indicated that he wished to testify at
a hearing before RO personnel at the agency of original
jurisdiction in lieu of appearing before a traveling Member
of the Board; that hearing was conducted in May 1996.
Further, in his July 1997 Substantive Appeal (also on VA Form
9, Appeal to the Board), which perfected the appeal of his
claim regarding the propriety of the initial rating assigned
for his PTSD, the veteran again requested the opportunity to
testify at a hearing held before a Member of the Board at the
local VA office. Thereafter, in an October 1997 statement,
which was received at the RO that same month, the veteran
withdrew his hearing request. The veteran's request for a
Board hearing is thus deemed withdrawn. See 38 C.F.R. §
20.704(e) (2000).
As a final preliminary matter, the Board observes that, in
May 1994, the veteran completed a VA Form 21-22 (Appointment
of Veterans Service Organization As Claimant's
Representative) in favor of Vietnam Veterans of America.
After representing the veteran for several years, in August
1999, that organization made a motion to the Board requesting
that it be removed as the veteran's representative pursuant
to 38 C.F.R. § 20.608(b); in October 1999, the Board granted
Vietnam Veterans of America's motion. As a result, in a
November 1999 letter, the Board notified the veteran that
Vietnam Veterans of America had been allowed to withdraw as
his representative and provided him a period of thirty days
in which to appoint another Veterans Service Organization or
an attorney to represent him; the veteran was also supplied
with the appropriate forms with which to do so. Later that
same month, the veteran formally selected the Veterans of
Foreign Wars as his representative; however, the record
reflects that that organization declined the appointment. In
a February 2000 letter, the Board notified the veteran of
Veterans of Foreign Wars' action and again offered him the
opportunity to select another representative or attorney; the
veteran was again provided the appropriate forms and the
Board indicated that the processing of his appeal would be
suspended for another thirty days. The veteran thereafter
indicated that he wished to be represented by the Non-
Commissioned Officers Association; however, in March 2000,
that organization too informed the Board that it declined the
appointment. In a further attempt to clarify the veteran's
representation in this appeal, in an April 2000 letter, the
Board informed the veteran of Non-Commissioned Officers
Association's decision. Thereafter, the veteran selected the
National Veterans Legal Services Program as his
representative; that organization likewise declined the
appointment, and in July 2000, the veteran again offered him
the opportunity to select another representative or attorney,
was again provided the appropriate forms to do so, and the
Board indicated that the processing of his appeal would be
suspended for another thirty days. To date, the veteran has
not responded to the Board's July 2000 letter and the Board
will thus proceed with the consideration of his case with the
veteran unrepresented.
FINDINGS OF FACT
1. All identified relevant evidence necessary for
disposition of the appeal has been obtained.
2. Neither the former criteria for evaluating psychiatric
disabilities, in effect when the veteran filed his claim for
service connection, nor the revised criteria, which became
effective November 7, 1996, are more favorable to the
veteran's claim.
3. The veteran's PTSD is manifested by frequent nightmares;
flashbacks; intrusive thoughts; irritability; impaired
concentration, with periods of violent behavior; a persistent
danger of hurting himself; suicidal ideation; intense guilt;
near-continuous depression; anxiety; chronic sleep
impairment; persistent auditory and visual hallucinations; an
exaggerated startle response; marked difficulty adapting to
stressful situations; severe social isolation; and severe
avoidance behavior. In addition, the record contains medical
evidence showing that the veteran is totally disabled and
thus incapable of being employed due to his PTSD.
4. The veteran is shown to have current disability
manifested by alcohol abuse that is the likely result of his
service-connected PTSD.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an initial 100 percent
evaluation for PTSD, effective June 1, 1994, have been met.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.7, 4.10, 4.16(c), 4.126, 4.130, 4.132, Diagnostic Code 9411
(1996 & 2000).
2. The veteran's disability manifested by alcohol and drug
abuse is proximately due to or the result of the service-
connected disability. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. §§ 3.303, 3.310 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
Since filing his claims for service connection in March 1994
for PTSD and for alcohol and drug abuse, the record shows
that the veteran has received regular treatment, on both an
inpatient and outpatient basis, for these conditions. In
addition, in September 1994, a VA social survey was
conducted, and in October 1994 and May 1997, the veteran was
afforded formal VA psychiatric examinations. Also of record
are July 1996 as well as June and August 1997 reports
prepared by the staff psychiatrist at the Buffalo, New York,
VA Medical Center. Further, in May 1996, the veteran and his
VA treatment counselor offered testimony in support of these
claims during a hearing held before a hearing officer at the
RO. Finally, the veteran and his former representative have
submitted statements and written argument in support of these
claims.
The Board has reviewed the voluminous medical and lay
evidence referred to above. Because it is clear that the
veteran suffers from PTSD and, as will be discussed below, VA
has already determined that he has been unemployable due to
the disability, effective October 1997, the Board will
confine its discussion of the evidence that relates to the
issue of whether the record shows that he is entitled to a
total schedular evaluation effective the date of service
connection. Similarly, because the veteran has been
diagnosed as suffering from alcohol and drug abuse on
numerous occasions, the only issue before the Board is
whether these disabilities are etiologically related to his
PTSD, the Board will discuss only that evidence that relates
to this question. See Gonzalez v. West, 218 F.3d 1378, 1380-
81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122
(2000).
A May 1994 discharge summary shows that the veteran received
inpatient care at the Buffalo, New York, VA Medical Center,
for approximately two months. The report reflects that the
veteran's PTSD was productive of numerous symptoms, including
depression; anxiety; intrusive thoughts, flashbacks and
nightmares of his Vietnam experiences; suicidal ideation; and
insomnia. The veteran also indicated that he used alcohol
and cocaine to treat his psychiatric problems. At discharge,
the physician diagnosed him as having chronic PTSD; alcohol
abuse secondary to PTSD; and episodic cocaine abuse.
Subsequent to offering these diagnoses, the examiner
estimated that the veteran's Global Assessment of Functioning
(GAF) score to be 45.
A VA social survey was conducted in September 1994. At the
outset of his report, which is dated in October 1994, the
examiner indicated that it was based on his review of the
veteran's pertinent records and his September 1994 interview
of the veteran. The examiner diagnosed the veteran as
suffering from severe, chronic, PTSD. In addition, he
characterized the veteran's PTSD symptoms as severe and noted
that the veteran suffered from chronic and recurrent
nightmares at least two to three times per week; flashbacks;
poor concentration and memory; an exaggerated startle
response; that he avoided activities that reminded him of
Vietnam; and that he had few acquaintances other than his
wife and son. The examiner further commented that the
veteran's Vietnam experiences had affected his life in an
"extreme way." In addition, he stated, "It is this
writer's opinion that [the veteran] is not employable in any
capacity due to his PTSD."
In October 1994, the veteran was afforded a formal VA
psychiatric examination. During the interview, the veteran
reported suffering from depression, crying "a lot," as well
as feeling lonely and "constantly guilty." In addition, he
indicated that he felt he did not have much of a future and
that he thought about suicide "constantly." Further, he
reported that he suffered from "constant" flashbacks and
nightmares, and that the latter symptom resulted in chronic
sleep problems. The veteran also stated that he was unable
to trust others and that he was easily started. The
physician indicated that the veteran was depressed during the
evaluation and stated that he "cried quite frequently
throughout the interview." He also reported that the
veteran exhibited tremendous amounts of guilt. The diagnoses
were PTSD; major depressive disorder, in partial remission;
and polysubstance abuse in full remission. The physician did
not offer a GAF score or comment on the veteran's
employability.
In a November 1995 report, the veteran's treating counselor
at COPIN House indicated that she had treated the veteran on
both an inpatient and outpatient basis for the past eighteen
months. She described him as an active participant in all
group therapy sessions, and added that he also attended
weekly individual counseling to treat his PTSD and substance
abuse. His counselor further stated that, despite
"behavioral therapy and pharmacology," which had "somewhat
relieved" some of his symptoms, the veteran's PTSD was
productive of: (1) severe sleep disorders, including
difficulty initiating and maintaining sleep; (2) nightmares
and intrusive thoughts on a daily basis; (3) an exaggerated
startle response and other forms of hypervigilance that
result in "high" levels of anxiety; (4) detachment and
isolation from others; (5) extreme distrust of others,
especially of authority figures; and (6) depressive episodes
that had resulted in suicidal ideations.
In May 1996, the veteran and one of his VA treatment
counselors testified at a hearing conducted before a hearing
officer at the RO. During the hearing, the veteran reported
that, despite treating his PTSD with numerous psychiatric
medications that were prescribed by VA, the disability was
productive of suicidal ideation, "intense" guilt,
flashbacks, nightmares, severe sleep disorder, and social
isolation. The veteran further testified that, due to his
chronic sleep problems, he was exhausted most of the time.
In addition, he maintained that he was unemployable due to
his the disability. In this regard, he described the
impairment due to the disability as "severe and totally
overwhelming" and indicated that it resulted in permanent
and total disability; he said that he was last employed in
the early 1990s.
With regard to his secondary service connection claim, the
veteran essentially testified that he "self-medicated" with
alcohol and other drugs to relieve the symptoms of his PTSD.
The veteran added that he had not consumed alcohol prior to
his period of military service and that he was "introduced"
to heroin while on active duty in Vietnam. He reported that
he continued to use alcohol and other drugs following his
discharge.
During the hearing, one of his counselors, who reported that
she treated the veteran on both an inpatient and outpatient
basis the COPIN House facility in Niagara Falls, New York,
testified in support of his claims. In this regard, the
Board observes that, at the hearing, the veteran's former
representative described the COPIN House as a therapeutic
residence for veterans suffering from PTSD and alcohol and
dependence problems. The veteran's counselor indicated that
she began treating the veteran on an inpatient basis at that
facility in October 1994 and had continued to do so following
the veteran's relocation to an outside residence; she stated
that the veteran continued participate in weekly therapy
sessions. With regard to his PTSD, his counselor reported
that the disability was manifested by recurrent intrusive
thoughts and nightmares of his Vietnam experiences. In
addition, she indicated that, due to the disability, the
veteran had intense guilt, had twice attempted suicide and
had committed several "self-destructive" gestures, which
included cutting himself deeply on several occasions with a
sharp knife. His counselor further testified that his PTSD
was also manifested by chronic sleep disorder and that he was
unable to achieve regular sleep despite going to bed with his
rifle. Further, with respect to his problems sleeping, his
counselor indicated that, when she treated him on days
following these episodes, he appeared to be "wiped out" and
in a state of "disassociation." She added that the veteran
suffered from PTSD "to an incapacitating and disabling
extent" and was essentially unemployable as a result.
Further, with respect to his secondary service connection
claims, she reported that he suffered from substance abuse as
secondary to his chronic PTSD.
In his July 1996 report, the staff psychiatrist at the
Buffalo, New York, VA Medical Center indicated that the
veteran suffered from severe PTSD. The physician stated that
the veteran suffered from severe intrusive memories of
traumatic experiences in Vietnam to the extent that he
probably had visual and auditory hallucinations with
accompanying strong feelings or terror, guilt and shame. He
added that the veteran's intrusions occurred almost daily and
"incapacitate him for hours each time, i.e., he is unable to
attend to outside stimuli." The examiner further reported
that the veteran thus spends most of his days sitting in his
apartment doing nothing, not even watching television. The
psychiatrist indicated that another example of the veteran's
severe avoidance symptoms was his sitting outside a store for
hours observing the customers going in prior to entering; he
explained that the veteran chooses to enter at times when he
concludes that the customers will be those least likely to
elicit his anger.
The physician further reported that, as a result of his PTSD,
the veteran slept for only approximately four hours per night
and that he had attempted suicide. He also stated that the
veteran had severe psychomotor retardation and indicated that
events relatively unrelated to his Vietnam traumas, such as a
pattern of trees, the time of day, water near the woods and
children, which are unrelated to his Vietnam trauma,
triggered intrusive recollections. In this regard, he
indicated that because there are so many "reminders," the
veteran tried to remain in one room in a particular place as
much of the day as possible. The physician also reported
that the nightmares occurred almost every evening and that
they resembled his daytime hallucinations. In summary, the
psychiatrist characterized the veteran as lonely, isolated,
burdened with multiple reasons why he cannot attend
instructions at work, get along with fellow workers or
reliably or repetitively carry out work tasks.
Further, the veteran was afforded a second formal VA
psychiatric examination in May 1997. During the evaluation,
the veteran complained that, as a result of his PTSD, he
suffered from flashbacks, nightmares, depression, social
isolation, an inability to stand intimacy in a relationship,
depression, poor appetite, constant anger, an exaggerated
startle response and impaired concentration. He also stated
that, following his discharge, he had used alcohol and drugs
to cope with his PTSD symptoms.
The examiner indicated that his impressions were based on
both his review of the claims folder and his interview of the
veteran. With regard to the history of the veteran's
psychiatric impairment, he observed that the veteran was
hospitalized in March 1994 for a drug overdose and that he
had almost committed suicide. The physician added that he
thereafter entered COPIN House and that the veteran had been
sober since 1995. With regard to the veteran's sobriety, the
physician commented that the veteran indicated that doing so
had left him more depressed, agitated, restless and angry.
He also reported that the veteran complained that his
flashbacks, intrusive thoughts, anxiety, "almost panic-like
attacks" and suicidal ideations had each increased; the
physician observed that the veteran was treating this
condition with anti-depressant and anti-anxiety medications.
The physician diagnosed the veteran as having PTSD, and
commented that he also suffered from major depression and
substance abuse. With respect to the substance abuse
diagnosis, the examiner opined that it was secondary to his
PTSD. He explained that the veteran never used alcohol or
drugs until he went to Vietnam and then used to treat his
PTSD symptoms. In addition, with respect to the veteran's
depression, the physician stated that because it was so
closely related to his PTSD, the disorder should not be
placed in a separate category. Further, the examiner
estimated the veteran's GAF as 45, which he explained
reflected that he had severe difficulties. In doing so, the
physician noted the veteran's unemployment, suicidal
ideation, inability to control his anger and his severe
difficulty in associating with other people.
In his June 1997 report, the VA staff psychiatrist reaffirmed
the findings and conclusion contained in his June 1996
report. In addition, in his August 1997 report, the
physician indicated that the veteran continued to suffer from
severe symptoms due to his PTSD. In this regard, he stated
that, as a result of his severe social withdrawal, the
veteran left his home only to shop, and stated that he had no
friends other than one woman, whom the examiner described as
an acquaintance of the veteran's. The physician added that,
due to his severe anxiety, the veteran stayed in a closet for
hours at a time. He further stated that the veteran
exhibited a preoccupation with his Vietnam experiences, which
included recurrent intrusive thoughts as well as visual
hallucinations. In this regard, the psychiatrist reported
that the veteran was observed by others to be talking to a
girl he killed while serving in Vietnam. In addition, he
continued to suffer from depression, hopelessness about the
future, suicidal ideation, recurrent nightmares and sleep
disorder.
The psychiatrist stated that, as a result of the veteran's
PTSD symptoms, he has severe problems concentrating,
following through on planned activities and working toward a
goal. In addition, he opined due to this disability, the
veteran was unable to work with other employees or follow
directions.
In February 1998, the veteran filed a document at the RO
completed by his former employer. On that form, his former
employer indicated, in pertinent part, that he attempted to
employ the veteran on two occasions but had to terminate him
because the veteran exhibited "bad behavior to everyone"
and was often depressed. Further, based in part on this
evidence, in April 1998, the RO granted the veteran's claim
of entitlement to TDIU benefits, essentially reasoning that
he was unable to secure or follow a substantially gainful
occupation due to his PTSD.
Finally, in numerous statements, the veteran essentially
echoed the contentions that he had voiced at the during his
May 1996 hearing and at the VA psychiatric examinations and
asserted entitlement to a 100 percent rating for his PTSD and
to service connection for alcohol and drug abuse. In
support, he cited the medical evidence discussed above.
Analysis
The Board is satisfied that all relevant facts have been
properly developed and no further assistance to the veteran
is required in order to comply with the duty to assist. See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, ___ (2000) (to be codified as amended
at 38 U.S.C. §§ 5103, 5103A). In reaching this conclusion,
the Board acknowledges that several VA hospitalization
reports reflect that he is receiving disability benefits from
the Social Security Administration (SSA) and that, to date,
VA has not attempted to associate these records with the
claims folder. In addition, VA treatment records and
reports, dated since August 1997, have likewise not been
associated with the claims folder. However, in light of this
decision, in which the Board finds that the veteran's PTSD
warrants a total schedular evaluation, effective the date of
service connection, and that service connection is warranted
for alcohol and drug abuse as secondary to his PTSD, the
veteran is not prejudiced by the Board's review of these
claims on the basis of the current record. The Board will
therefore proceed with the consideration of this case.
I. The initial evaluation of the veteran's PTSD
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4. When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more nearly
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. See 38 C.F.R. § 4.7.
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the veteran. See
38 C.F.R. § 4.3. The veteran's entire history is reviewed
when making disability evaluations. See 38 C.F.R. 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).
Before proceeding with its analysis of the veteran's claim,
the Board finds that some discussion of the Fenderson case is
warranted. In that case, the Court emphasized the
distinction between a new claim for an increased evaluation
of a service-connected disability and a case in which the
veteran expresses dissatisfaction with the assignment of an
initial disability evaluation where the disability in
question has just been recognized as service-connected. In
the former case, the Court held in Francisco v. Brown, 7 Vet.
App. 55, 58 (1994), that the current level of disability is
of primary importance when assessing an increased rating
claim. In the latter case, however, where, as here, the
veteran has expressed dissatisfaction with the assignment of
an initial rating, the Francisco rule does not apply; rather,
the VA must assess the level of disability from the date of
initial application for service connection and determine
whether the level of disability warrants the assignment of
different disability ratings at different times over the life
of the claim-a practice known as "staged rating." In view
of the Board's action, as explained below, a remand to
consider "staged rating" is unnecessary.
As noted above, the veteran's service-connected PTSD is rated
as 70 percent disabling under Diagnostic Code 9411 of the
Rating Schedule. The Board observes that, effective November
7, 1996, VA revised the criteria for diagnosing and
evaluating psychiatric disabilities. 61 Fed. Reg. 52,695
(1996). Where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the veteran applies, absent congressional or
Secretarial intent to the contrary. See Dudnick v. Brown, 10
Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991). In this regard, the General Counsel of VA has
recently held that where a law or regulation changes during
the pendency of a claim for an increased rating, the Board
should first determine whether the revised version is more
favorable to the veteran. In so doing, it may be necessary
for the Board to apply both the old and new versions of the
regulation. If the revised version of the regulation is more
favorable, the retroactive reach of that regulation under 38
U.S.C.A. § 5110(g) (West 1991) can be no earlier than the
effective date of that change. The Board must apply both the
former and the revised versions of the regulation for the
period prior and subsequent to the regulatory change, but an
effective date based on the revised criteria may be no
earlier than the date of the change. As such, VA must
consider the claim pursuant to both versions during the
course of the entire appeal. See VAOPGCPREC 3-2000 (2000);
DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Further, as
the RO has considered the claim pursuant to both the former
and revised criteria in the September 1997 rating action, a
copy of which was issued as part of the Supplemental
Statement of the Case (SSOC) dated in October 1997, there is
no prejudice to the veteran in the Board doing likewise.
Pursuant to the former criteria, a 70 percent evaluation
required that the ability to establish and maintain effective
or favorable relationships was severely impaired and that the
psychoneurotic symptoms were of such severity and persistence
that there was severe impairment of the ability to obtain or
retain employment. To warrant a 100 percent evaluation, the
attitudes of all contacts except the most intimate must have
been so adversely affected as to result in virtual isolation
in the community; or there must have been totally
incapacitating symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior; or, as a
result of the psychiatric disability, the individual must
have been unable to obtain or retain employment. Further,
the Court held that these criteria provide three independent
bases for granting a 100 percent disability evaluation. See
Johnson v. Brown, 7 Vet. App. 95, 97 (1994).
In addition, 38 C.F.R. § 4.16(c) (1996), which was repealed
when the revised criteria for rating psychiatric disabilities
became effective, provided that where the veteran's only
compensable service-connected disability was a mental
disorder that was assigned a 70 percent evaluation, and that
mental disorder precluded a veteran from securing or
following a substantially gainful occupation, the mental
disorder must be assigned a 100 percent evaluation under the
appropriate diagnostic code.
Pursuant to the revised criteria, a 70 evaluation for PTSD is
warranted when the disability is productive of occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence; spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); and an inability to establish and maintain
effective relationships. A 100 percent evaluation requires
that the disability be productive of total occupational and
social impairment, due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
and memory loss for names of close relatives, own occupation,
or own name.
Following a careful review of the evidence, the Board finds
that the current severity of the veteran's psychiatric
disability warrants a 100 percent evaluation under both the
former and the revised criteria. In reaching this
determination, the Board observes that every examiner who has
offered an opinion regarding the veteran's ability to work
has opined that he is unemployable due to his PTSD. Indeed,
the record discloses that these opinions have been offered as
far back as the October 1994 VA social survey. In addition,
that conclusion is consistent with the GAF score of 45, which
was assigned following the veteran's discharge from a two-
month period of inpatient care at the Buffalo, New York, VA
Medical Center. According to the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, (DSM-IV), a GAF
score of 45 reflects an inability to keep a job. Further,
not only has his regular treating counselor at COPIN House
opined that he is unemployable due to his PTSD, but the VA
staff psychiatrist at the Buffalo, New York, VA Medical
Center, in reports dated in July 1996 and in June and August
1997, indicated that the veteran was unable to work as a
consequence of this disability. In this regard, the Board
observes that both of these mental health professionals have
had ample opportunity to observe and evaluate the veteran as
they have treated him regularly for several years. As such,
because the evidence shows that he is demonstrably unable to
obtain or retain employment, a 100 percent evaluation
pursuant to the criteria formerly contained Diagnostic Code
9411 is warranted. See Johnson, 7 Vet. App. at 97; 38 C.F.R.
§ 4.16(c). In addition, the Board notes that this conclusion
is consistent with the February 1998 statement submitted by
the veteran's former employer as well as by the clinical
observations contained in the July 1996 and June and August
1997 reports prepared by the staff psychiatrist at the
Buffalo, New York, VA Medical Center, in which he reported
that, due to his PTSD, the veteran was incapacitated for
hours at a time almost every day.
In addition, although the veteran is deemed entitled to the
maximum assignable evaluation under the former criteria,
given the severity of his social and industrial impairment, a
100 percent evaluation under the revised criteria is also
warranted. This determination is also supported by the
medical evidence discussed above which shows that the
disability is productive of virtually total social impairment
as well as persistent auditory and visual hallucinations,
suicidal ideation and attempts and that the veteran is
persistent danger to his own well being.
Moreover, in reaching this determination, the Board observes
that it is consistent with the RO's April 1998 grant of
entitlement to a TDIU. In that decision, the RO, citing the
February 1998 statement, essentially reasoned that his PTSD
alone was sufficient to render him unemployable. Finally,
because the 100 percent evaluation represents the greatest
degree of impairment since the date of the grant of service
connection, "staged rating" is unnecessary. See Fenderson,
12 Vet. App. at 126.
II. Claim for secondary service connection for alcohol and
drug abuse
Service connection may be warranted for disability
proximately due to or the result of a service-connected
disorder and where aggravation of a nonservice-connected
disorder is proximately due to or the result of a service-
connected disability. 38 C.F.R. § 3.310(a). Further,
pursuant to 38 U.S.C.A. §§ 1110 and 1131, compensation is
payable to a veteran for disability resulting from personal
injury suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, "but no compensation shall be
paid if the disability is a result of the veteran's own
willful misconduct or abuse of alcohol or drugs." The term
"compensation" is defined as "a monthly payment made by
the Secretary to a veteran because of service-connected
disability, or to a surviving spouse, child, or parent of a
veteran because of the service[-]connected death of the
veteran occurring before January 1, 1957." 38 U.S.C.A.
§ 101(13) (1991).
Further, the General Counsel of VA has concluded that, for
claims filed after October 31, 1990, 38 U.S.C.A. § 105(a), as
amended by section 8052 of the Omnibus Budget Reconciliation
Act of 1990 and implemented by 38 C.F.R. § 3.1(m), precludes
a finding that an injury or disease that was the result of a
person's own alcohol or drug abuse was incurred or aggravated
in the line of duty. VAOPGCPREC 2-98, 63 Fed. Reg. 31263
(1998). The General Counsel declared, however,
For purposes of all such VA benefits
other than disability compensation, the
amendments made by section 8052 do not
preclude eligibility based on a
disability, or death resulting from such
a disability, secondarily service-
connected under 38 C.F.R. § 3.310(a) as
proximately due to or the result of a
service-connected disease or injury.
In Barela v. West, 11 Vet. App. 280 (1998), citing VAOPGCPREC
2-98, the Court found that the Board had properly determined
that the veteran was not entitled to compensation for abuse
of alcohol or drugs. The Court, however, noted that VA
proceeded improperly to conclude that "[s]ervice connection
for alcohol and drug abuse, claimed as secondary to service-
connected [PTSD] with depression, is prohibited by law."
The Court noted that, because section 1110, by its terms,
prohibits only the payment of "compensation" for disability
due to alcohol and drug abuse, and does not bar an award of
service connection, the Board went too far and thus erred in
holding that an award of service connection for disability
due to abuse of alcohol or drugs is precluded by 38 U.S.C.A.
§ 1110.
In this case, every medical professional who has commented on
the matter has attributed the veteran's alcohol and drug
abuse to his service-connected PTSD. This includes the
physician who prepared the May 1994 VA hospitalization
report; the counselor who has treated him on both an
inpatient and outpatient basis at COPIN House, who stated
that in her May 1996 hearing testimony; and the physician who
drafted the May 1997 VA examination report. Thus, as the
evidence attributing the alcohol and drug abuse to PTSD is
uncontradicted, the Board finds that the evidence supports
the claim of secondary service connection for alcohol and
drug abuse.
ORDER
Subject to the law and regulations governing payment of
monetary benefits, an initial 100 percent rating for PTSD,
effective June 1, 1994, is granted.
Secondary service connection for alcohol and drug abuse is
granted.
REMAND
As noted in the introduction, in July 1995, the RO denied
service connection for chloracne, which the veteran asserted
he had due to his exposure to Agent Orange in Vietnam. In
addition, during his October 1994 VA dermatological
examination, the veteran reported that he had no skin
problems prior to his period of service but complained of
suffering from chronic and recurrent skin problems since that
time. The October 1994 examination report reflects that the
physician diagnosed the veteran as having seborrheic
dermatitis affecting the skin of his scalp, face and chest,
as well as post-acne scars with a few open comedones on his
upper back; however, the examiner did not offer an opinion
with respect to either of the diagnosed skin disorders.
Moreover, as the veteran pointed out during his May 1996
hearing, his service medical records show that, at discharge,
he was found to have marks and scars on his skin. At the
hearing, the veteran also testified to having numerous skin
problems while in Vietnam and suffering from chronic and
recurrent skin problems on his back and chest.
The requirement that a veteran submit a well-grounded claim
in order to trigger VA's duty to assist has recently been
repealed. See Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000). Moreover, in light of
the veteran's testimony, the Board observes that the veteran
has expanded the service connection claim to include skin
disability generally, rather than only chloracne, and on a
basis other than as due solely to his claimed in-service
exposure to Agent Orange. In light of the foregoing, the
Board concludes that this claim must be remanded for further
development, to include a contemporaneous and thorough VA
skin examination that includes a medical opinion regarding
whether it is at least as likely as not that the veteran has
any chronic skin disability that is related to his period of
service. See Pond v. West, 12 Vet. App. 341, 346 (1999); see
also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000).
In addition, the Board observes that, in adjudicating this
claim, the RO has not, to date, considered the application of
38 U.S.C.A. § 1154(b) (West 1991) or 38 C.F.R. § 3.304(d)
(2000). In light of the foregoing, in reconsidering this
issue, the RO must specifically consider that law and
regulation. See Dambach v. Gober, 223 F.3d 1376, 1380 (Fed.
Cir. 2000).
Further, as noted above, the record shows that the veteran
receives regular VA medical care. As such, because records
generated by VA facilities that might have an impact on the
adjudication of a claim are considered constructively in the
possession of VA adjudicators during the consideration of
that claim, regardless of whether those records are
physically on file, these records must be associated with the
claims folder. See Dunn v. West, 11 Vet. App. 462, 466-67
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In
addition, as discussed above, the claims folder also reflects
that the veteran has been awarded disability benefits from
the SSA, and to date, VA has not attempted to obtain and
associate these records, as well as any determinations issued
by that agency, with the claims folder. The RO must obtain
these treatment records and determinations because they might
contain diagnostic studies and other conclusions that might
be determinative in the disposition of this claim.
In light of the foregoing, the Board is REMANDING this case
for the following:
1. The RO should obtain and associate
with the claims folder all outstanding
records of treatment pertaining to the
veteran. This should specifically
include any outstanding records of VA
medical care from the Buffalo, New York,
VA Medical Center, and from any other
facility or source identified by the
veteran. The aid of the veteran in
securing these records, to include
providing necessary authorization(s),
should be enlisted, as needed. If any
requested records are not available, or
if the search for any such records
otherwise yields negative results, that
fact should clearly be documented in the
claims file, and the veteran should be
informed in writing.
2. The RO should request, directly from
the SSA, complete copies of any
disability determination(s) it has made
concerning the veteran and copies of the
medical records that served as the basis
for any such decision(s). All attempts
to fulfill this development must be
documented in the claims file.
3. After associating with the claims
folder all available records received
pursuant to the above-requested
development, the veteran should be
afforded a VA skin examination to
determine the nature, extent and etiology
and diagnosis of any skin problems found
to be present. It is imperative that the
physician who is designated to examine
the veteran reviews the evidence in the
claims folder, including a complete copy
of this REMAND, and acknowledges such
review in the examination report. All
necessary tests should be conducted. The
physician is requested to offer an
opinion as to whether it is at least as
likely as not that any skin disability
found to be present is etiologically
related to the veteran's period of
military service, to include his claimed
exposure to Agent Orange while serving in
Vietnam. The physician must set forth
the complete rationale underlying any
conclusions drawn or opinions expressed,
to include, as appropriate, citation to
specific evidence in the record.
4. The RO should ensure that the
directives of this REMAND are fully
complied with. See Stegall v. West, 11
Vet. App. 268 (1998). If any action
requested is not taken, or if they are
deficient in any manner, appropriate
corrective action should be undertaken.
5. Upon the completion of the above
development (and after undertaking any
additional development deemed warranted
by the record), the RO should
readjudicate the veteran's claim for
service connection for skin disability in
light of all pertinent evidence of
record, and all applicable laws,
regulations, and case law. In doing so,
the RO must specifically consider
38 U.S.C.A. § 1154(b) (West 1991) and
38 C.F.R. § 3.304(d) (2000).
6. If any benefit sought by the veteran
continues to be denied, he must be
furnished a Supplemental Statement of the
Case (SSOC) and given an opportunity to
submit written or other argument in
response before the case is returned to
the Board for further appellate
consideration.
The purpose of this REMAND is to accomplish additional
development and adjudication and to ensure that all due
process requirements are met; it is not the Board's intent to
imply whether the benefits requested should be granted or
denied. The veteran need take no action until otherwise
notified, but he may furnish additional evidence within the
appropriate time period. See Kutscherousky v. West, 12 Vet.
App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
J. E. Day
Veterans Law Judge
Board of Veterans' Appeals